Jorge Rendon-ramos, Plaintiff-appellant, v. United States of America, Defendant-appellee, 961 F.2d 216 (9th Cir. 1992)

MEMORANDUM^** 

Jorge Rendon-Ramos, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Rendon-Ramos contends the sentencing court erred by failing to award him a downward adjustment in his United States Sentencing Guidelines (Guidelines) offense level for his acceptance of responsibility and minor role in the offense. In addition, he claims the district court improperly included in its criminal history calculations a prior uncounseled conviction. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and we affirm.

Rendon-Ramos waived his right to attack these alleged errors in the presentence report (PSR) when he failed to avail himself of the opportunity to do so contemporaneously or on direct appeal. See United States v. Keller, 902 F.2d 1391, 1393-94 (9th Cir. 1990) (appellant who did not contest accuracy of PSR prior to filing section 2255 motion waived his right to raise the issue through a section 2255 motion).

Rendon-Ramos contends that his failure to raise these issues earlier was the result of ineffective assistance of counsel at trial. He argues that counsel prevented him from adequately preparing for his sentencing hearing and that his counsel failed to argue in favor of his receiving a downward adjustment for his minor role in the offense. These contentions lack merit.

To demonstrate ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 689. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id. at 694.

At his sentencing hearing, Rendon-Ramos acknowledged that he had read the PSR, had no additions or corrections to offer, and stated that his counsel had already addressed all issues of concern to him.¹  Based on this record, we do not find that counsel's representation in this matter was deficient.

AFFIRMED.